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Bloomberg Government: Pick for Federal Whistle-Blower Office Gets Kudos in Senate

July 05, 2017
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President Donald Trump’s pick to lead the agency charged with guarding against whistle-blower retaliation and other prohibited personnel practices in the federal government got a warm reception from a Senate panel June 28.

Henry Kerner is assistant vice president for investigations at the Cause of Action Institute, a Washington-based nonprofit that describes its mission as “advocating for economic freedom and individual opportunity advanced by honest, accountable, and limited government.”

But his background as deputy district attorney for Los Angeles County got more attention from Democrats and Republicans on the Senate Homeland Security and Governmental Affairs Committee. His work for Sen. John McCain (R-Ariz.) when McCain was the ranking member of the Senate Permanent Subcommittee on Investigations also drew major attention.

Someone with “a lot of Hill experience” is a good fit for the job of special counsel, Sen. Claire McCaskill (D-Mo.), the panel’s ranking member, said of Kerner. The OSC interacts frequently with Congress and lawmakers expect the agency to be responsive to information requests, McCaskill said.

“It would be pretty hard for me to not be for you,” she said, citing her own background as a federal prosecutor.

Nick Schwellenbach, a former OSC spokesman who’s now director of investigations at the Project On Government Oversight, told Bloomberg BNA that Kerner is “well-qualified and his prosecutorial background will be useful.”

POGO, a Washington-based nonprofit, describes its mission as working toward “a more effective, accountable, open, and ethical federal government.” 

More Cases Ahead?

As OSC chief, Kerner said, he would use litigation to strengthen federal whistle-blower protections.

“I want to place an increased emphasis on litigation to promote accountability, deter future violations, and strengthen OSC’s bargaining position when negotiating settlement agreements for whistle-blowers,” Kerner told the panel.

He also pledged to build on former OSC chief Carolyn Lerner’s work. Lerner, an Obama appointee, led the OSC from March 2011 until earlier this year.

“I want to continue to implement the information technology system upgrades currently in progress, while paying special attention to cybersecurity and caseload efficiency gains,” Kerner said. He also promised “to optimize intake of an ever-expanding caseload in order to provide appropriate response times to whistle-blowers,” another priority for Lerner at the agency. 

Litigation Called 'Missing Link’

Schwellenbach said increased litigation could bring attention to whistle-blower retaliation and other prohibited personnel practices at federal agencies.

“Taking a more aggressive approach will help the agency’s ability to litigate and result in more attorneys at OSC with litigation experience,” he told Bloomberg BNA.

The OSC litigates a small number of Hatch Act cases--“in the single digits”--each year involving improper political activity by federal employees, Schwellenbach said. But the agency rarely brings other types of cases, he said.

Tom Devine, legal director at the Government Accountability Project, a Washington-based nonprofit with the mission of assisting federal- and private-sector whistle-blowers, told Bloomberg BNA that Kerner will be an effective OSC chief.

“Mr. Kerner has a solid history in the trenches helping whistleblowers,” Devine said in an email. “Most significant, he is not afraid to litigate, the missing link for agencies to respect OSC investigations and accept OSC recommendations.” 

DHS Pick Also Well-Received

Claire M. Grady, Trump’s pick to be the next undersecretary for management at the Department of Homeland Security, also appeared to impress the Senate panel.

Grady said she has worked in the federal government for 25 years, beginning her career as an intern and eventually serving in senior positions at the DHS and the Department of Defense.

If confirmed, Grady said, she will work to improve employee engagement at the DHS, a long-standing issue for the department.

Completing the department’s move to a consolidated location at what was formerly St. Elizabeth’s Hospital in Washington will help that effort, Grady told the panel. The geographic dispersion of DHS agencies is making it harder for department employees to work together on common mission goals, she said.

David Inserra, a policy analyst at the Washington-based Heritage Foundation, told Bloomberg BNA June 28 that employee morale at the DHS “is one of the biggest challenges in the federal government.”

The department “needs a whole lot of help,” and Grady, with her extensive experience at the DHS and the DOD, is well-positioned to provide it, Inserra said.

Louis C. LaBrecque
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